dissenting, with whom RAPER, Justice, joins.
To me, the majority opinion results in a definite “pick and choose” of a trial judge— and this after the judge has indicated some position relative to the divorce case. Such is improper. See quotation in the majority opinion from State ex rel. Johnston v. District Court of Platte County, Wyo., 495 P.2d 255, 256 (1972).
The result reached by the majority opinion in this case confirms my belief that the federal requirements for disqualifying of a judge is better than ours.1 We should change our rule to accomplish the federal standards.
But even under our present rule, the time had passed in this divorce case in which the judge could be peremptorily disqualified. The majority opinion does not recognize the fact that a trial had taken place. It had. Section 20-2-104, W.S.1977, provides that:
*130“A divorce may be decreed by the district court of the county in which either party resides on the complaint of the aggrieved party on the grounds of irreconcilable differences in the marital relationship.” (Emphasis added.)
The decree must be based upon the determination that the required grounds exist. Section 20-2-114, W.S.1977, provides in pertinent part:
“In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired, and the burdens imposed upon the property for the benefit of either party and children. * * * ” (Emphasis added.)
It is the court that must make the disposition of the property, and it is the court that must decide that which is “just and equitable” with reference thereto. The parties cannot bind the court by a property settlement agreement. They must know that any property settlement agreement must appear just and equitable to the court — and this only after the court examines the evidence relative to the factors set forth in the foregoing quotation.
“Actions * * * for a divorce, shall be conducted in the same manner as civil actions * * Section 20-2-108, W.S. 1977.
The divorce decree with which we are here concerned reflects that when the matter came before the court, it “heard the evidence adduced on behalf of the Plaintiff.”2 After the decree was entered, defendant filed a “Combined Motions for New Trial, Amendment of Judgment, Relief from Judgment and Order, and Modification of Decree,” (emphasis added). In it defendant refers to the evidence “received at the trial” and prays for, among other things, a “new trial.” Certainly, defendant recognized the fact that a trial was held.
It was after the court granted defendant’s motion for a new trial that defendant sought to peremptorily disqualify the judge. The language of Rule 40.1(b)(1), W.R.C.P., is plain in limiting the time for a peremptory disqualification to a time “at least fifteen (15) days before the date set for trial.” An effort to so disqualify a judge after a trial, even if a motion for a new trial has been granted, is out of time.
I would deny the Petition for Writ of Prohibition.
. See 28 U.S.C.A. § 455 which requires cause as a basis for disqualification.
. Defendant did not appear in person or by counsel.